The Best Evidence Rule in Action

You won’t see many appellate cases in which the best evidence rule (MRE 1002, 1003, and 1004) comes into play. That’s because the appellate courts give great deference to the trial judge’s rulings on evidence.

But a recent case shows how the rule can come up at trial, how the trial judge deals with it, and how the appellate courts address it.

A contract dispute arose between Clifford Frisby and Ferrell Warden over sale of a home. Warden claimed that the parties had an agreement that he would perform certain work on the property and be given credit for the value of the work against the sale price. At trial he offered three documents into evidence to support his claim. Frisby objected to their authenticity. The chancellor ruled that they were admissible, and ultimately ruled in favor of Warden. Frisby appealed on several grounds, one of which was that the chancellor erred in admitting the three documents contrary to the best evidence rule.

In Frisby, et al. v. Warden, decided May 8, 2018, the COA affirmed. Judge Greenlee wrote the opinion for a unanimous court:

¶7. Frisby asserts that the chancellor improperly admitted the disputed handwritten contracts into evidence. According to Frisby, these documents were duplicates of original handwritten documents that he never signed. Therefore, he argues that pursuant to Mississippi Rules of Evidence 1002 and 1003, the duplicates were inadmissible because there was a genuine question as to their authenticity. In response, Warden asserts Frisby has
offered nothing to show that the chancellor abused her discretion nor that any substantial right has been affected. A review of the record indicates that the chancellor, in denying Frisby’s motion for reconsideration, explained the handwritten contracts were admitted into evidence pursuant to Mississippi Rule of Evidence 1004(c). We find this determination was not manifest error.

¶8. Frisby correctly asserts that pursuant to Rule 1002, known as the best-evidence rule, an original writing is generally required to prove its contents. Further, pursuant to Rule 1003, Frisby correctly asserts that a duplicate cannot be admitted when a genuine issue has been raised about the original’s authenticity. However, an exception to the best-evidence rule exists when the party against whom the original would be offered had control of the original, received notice that the original would be subject to proof at trial, and failed to produce the original at trial. M.R.E. 1004(c).

¶9. In the present case, Warden introduced duplicates of three handwritten documents into evidence in support of his complaint for specific performance. Frisby initially objected to their introduction, but allowed them to be introduced “for the purpose of this hearing,” while still contesting their authenticity. Thus, the hearing proceeded to determine the authenticity of the alleged contracts, with both parties presenting multiple witnesses.

¶10. During the hearing, Frisby testified as an adverse witness and explained that he had never seen the three alleged contracts before and that Warden had never been to his office. However, Warden testified that he drafted all three of the handwritten documents “so that [he] could have some kind of documentation on a deal [they] had on the house.” Further, Warden testified that while he originally had the original documents, he met Frisby at Frisby’s office, where Frisby made copies of the documents and retained the originals, and gave Warden copies. Michael Neill, the previous owner of the property, also testified for Warden. He testified that he deeded the property to Frisby in 2010, and that when he spoke with Warden in 2011 or early 2012, Warden said he was buying the house from Frisby and “doing odd jobs” to pay off the house. Further, Neill testified that he saw Frisby sign a document in 2014, but that he did not know the document’s purpose. Neill later testified that he had overheard Frisby and Warden discussing ownership of the house for labor.

¶11. As previously mentioned, the admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of discretion. Tunica Cty. [v. Matthews], 926 So. 2d [209] at 212 (¶5) [(Miss. 2006)]. Further, “the chancellor sits as the fact finder and is the sole judge of the credibility of a witness when resolving factual disputes.” Stokes v. Campbell, 794 So. 2d 1045, 1048 (¶11) (Miss. Ct. App. 2001). As such, it was the chancellor’s job as trier of fact to determine which version she found more credible. LeBlanc v. Andrews, 931 So. 2d 683, 689 (¶19) (Miss. Ct. App. 2006). The chancellor, after hearing all the evidence, accepted Warden’s testimony as the most credible, admitting the duplicates pursuant to Rule 1004(c). Because there was substantial credible evidence in the record to support the chancellor’s finding, this Court must accept them. Accordingly, this issue is without merit.

Not much to add. The chancellor found the documents to be what they purported to be — that’s authenticity — and her decision was supported by evidence in the record. It’s her call to make, she made it, and the COA affirmed it.

The testimony that Frisby copied the documents and kept the originals was enough to shoot down his demand to produce the originals, per MRE 1004(c).